Procedural fairness and unfair dismissal

The need to ensure that there is a reasonable opportunity for an employee whose employment is at risk of being terminated for cause, whether a breach of standards or misconduct, to understand the allegation and to respond to it in a meaningful way is evident in Dent v Halliburton Australia Pty Ltd (2014) FWC 5692. Fair Work Commissioner Booth said she accepted the employer’s argument, relying on the Federal Court’s 1993 ruling in Schaale v Hoechts that its “investigation does not need to be without flaw. It does not need to be forensic in detail” but concluded on balance that it had not provided the employee adequate notice or opportunity to respond to the possibility he would be dismissed “until after the decision had already been taken”.